Citation Nr: 9922063
Decision Date: 08/06/99 Archive Date: 08/12/99
DOCKET NO. 97-25 550 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for
anterior cruciate ligament (ACL) reconstruction, right knee.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Robinson, Associate Counsel
INTRODUCTION
The veteran had active service from March 1993 to December
1996.
This matter comes before the Board of Veterans' Appeals
(Board) from a May 1997 rating determination of a Department
of Veterans Affairs (VA) Regional Office (RO).
In August 1998, the Board remanded this case for further
development. The case has been returned for appellate
review.
FINDINGS OF FACT
1. The veteran failed without good cause to report for VA
examinations scheduled in March 1999, to evaluate his right
knee disability.
2. Not more than slight impairment of the right knee is
shown.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 10 percent ACL
reconstruction, right knee have not been met. 38 U.S.C.A. §§
1155, 5107(a) (West 1991); 38 C.F.R.
§§ 3.655, 4.1, 4.2, 4.7, 4.21; Diagnostic Code 5257 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant's claim is well grounded. 38 U.S.C.A. §
5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In the
instant case the veteran is technically not seeking an
increased rating, since his appeal arises from the original
assignment of a disability rating. However, when a veteran
is awarded service connection for a disability and
subsequently appeals the initial assignment of a rating for
that disability, the claim continues to be well grounded.
Fenderson v. West, 12 Vet. App.119 (1999); Shipwash v. Brown,
8 Vet. App. 218, 224 (1995).
Factual Background
The veteran's service medical records show that he sustained
a twisting injury to the right knee in March 1995. The
assessment was medial collateral ligament strain. In May
1995, he sustained a second right knee injury and anterior
knee pain recurred following the injury. In June 1995, the
veteran underwent diagnostic right knee arthroscopy and was
found to have an ACL tear. The veteran underwent an
arthroscopically assisted tarsotibial bone-tendon-bone
autograph, right ACL reconstruction in May 1996. Following
the ACL reconstruction the veteran complained of soreness
with occasional locking from May 1996 to July 1996. The
assessment was "doing well." On examination for separation
from service in October 1996, the veteran was noted to have a
right knee surgical scar. The lower extremities were found
to be normal.
A rating decision of May 1997 granted service connection for
ACL reconstruction of the right knee, rated as 10 percent
under Diagnostic Code 5257. It is from this decision that
the veteran appeals.
The veteran was accorded a VA general medicine examination in
February 1997. At that time, he reported that his right knee
had been stable since surgery but he had persistent pain and
stiffness in the morning. On examination, a healed
longitudinal surgical scar was noted over the anterior
patella. There was moderate tenderness noted over the
anterior right knee, inferiorly. The right knee was mildly
and diffusely edematous. The veteran developed mild pain
over the anterior knee with full flexion of the knee to the
neutral position. Right thigh flexion and extension motor
strength, right lower leg flexion and extension motor
strength, and right ankle dorsiflexion and plantar flexion
motor strength was noted to be 80 percent of normal. The
impression was impaired right lower extremity strength
believed to be secondary to right knee pain and right thigh
muscle atrophy. X-rays showed screws of the distal femur and
proximal tibia, no degenerative changes.
The veteran was accorded a hearing in September 1997. At
that time, he testified that on three occasions he
hyperextended his right knee causing pain and swelling. He
testified that full extension of his right knee caused pain.
He testified that he could walk a mile on even terrain with
slight pain. Jogging was tolerable with his knee brace. He
does not limp or use a cane. He does not take any
medication. He had not received any recent treatment. The
veteran testified that he experienced episodes of locking in
the joint.
Pertinent Law and Regulations
Disability ratings are based on the average impairment of
earning capacity resulting from disability. 38 U.S.C.A. §
1155 (West 1991); 38 C.F.R. § 4.1 (1998). The average
impairment as set forth in VA's schedule for rating
disabilities, codified in 38 C.F.R. Part 4, includes
diagnostic codes which represent particular disabilities.
Generally, the degrees of disabilities specified are
considered adequate to compensate for a loss of working
proportionate to the severity of the disability.
The determination of whether an increased evaluation is
warranted is to be based on
review of the entire evidence of record and the application
of all pertinent regulations. See Schafrath v. Derwinski, 1
Vet. App. 589 (1991). These regulations include, but are not
limited to, 38 C.F.R. § 4.1 (1998), which requires that each
disability be viewed in relation to its history.
VA regulations provide that: [W]hen entitlement or continued
entitlement to a benefit cannot be established or confirmed
without a current VA examination or reexamination and a
claimant, without good cause, fails to report for such
examination, or reexamination, action shall be taken in
accordance with paragraph (b) or (c) of this section as
appropriate. Examples of good cause include, but are not
limited to, the illness or hospitalization of the claimant,
death of an immediate family member, etc. For purposes of
this section, the terms examination and reexamination include
periods of hospital observation when required by VA. (b)
Original or reopened claim, or claim for increase. When a
claimant fails to report for an examination scheduled in
conjunction with an original compensation claim, the claim
shall be rated based on the evidence of record. When the
examination was scheduled in conjunction with any other
original claim, a reopened claim for a benefit which was
previously disallowed, or a claim for increase, the claim
shall be denied. 38 C.F.R. § 3.655(a)(b).
The veteran's right knee disability is currently evaluated
pursuant to 38 C.F.R.
§ 4.71a, Diagnostic Code 5257 which provides a 10 evaluation
for other impairment of the knee with slight recurrent
subluxation or lateral instability. A 20 percent evaluation
is provided for other impairment of the knee with moderate
recurrent subluxation or lateral instability. A 30 percent
evaluation is provided where there is severe recurrent
subluxation or lateral instability. 38 C.F.R. § 4.71a,
Diagnostic Code 5257 (1998).
Analysis
The veteran failed without explanation to report for a VA
examination scheduled in order to evaluate his right knee
disability. Since he has offered no explanation for his
absence, the Board must conclude that there is no showing of
good cause for his failure to report.
While a copy of the actual notification letter for VA
examinations are not on file, the claims folder does contain
a computer-generated report from March 1999 and a letter from
the RO dated in December 1998 which indicate that the veteran
was notified of necessity to attend any VA medical
examinations scheduled for him, and which indicate that he
failed to report for the examination scheduled. There is no
evidence that any of these VA examination notices were
returned as undeliverable. In this regard, the United States
Court of Appeals for Veterans Claims (Court) has ruled that
there is a "presumption of regularity" under which it is
presumed that Government officials have properly discharged
their official duties. Clear evidence to the contrary is
required to rebut the presumption of regularity. Ashley v.
Derwinski, 2 Vet. App. 307 (1992), (citing United States v.
Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). While
the Ashley case dealt with regularity of procedures at the
Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the
Court applied this presumption of regularity to procedures at
the RO. That latter case also stands for the proposition
that VA need mail notice only to the last address of record
in order for the presumption to attach. Mindenhall at 274.
In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held
that when a veteran appealed the initial rating assigned in
an original compensation claim (following a grant of service
connection), that 'rating claim' continued to be an original
claim as a matter of law. Therefore, the Board could not
deny this veteran's appellate demand for a higher evaluation
in accordance with 38 C.F.R. § 3.655(b), because this veteran
has failed to report for all scheduled VA examinations
without any good cause or adequate reason, because that
regulation states that when a claimant fails to report for an
examination scheduled in conjunction with an original claim,
the claim shall be rated based on the available evidence on
file.
There is no medical evidence subsequent to the February 1997
VA examination pertaining to the right knee disability. The
Board had previously requested another examination to
identify findings that could provide the basis for a higher
rating. As noted above, the veteran did not attend the
scheduled examination. The medical findings associated with
the instant claim do not demonstrate moderate recurrent
subluxation or lateral instability of the right knee, as
required for a 20 percent rating under Code 5257. The
medical data of record do not reflect more than slight
impairment with instability or subluxation and thus are
consistent with the 10 percent rating that is currently
assigned.
As to the veteran's claims of pain and functional loss, the
Board notes the Court has held that 38 C.F.R. §§ 4.40 and
4.45 were not applicable for disability evaluated under
diagnostic code 5257, which is not predicated on loss of
range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11
(1996); see also VAOPGCPREC 23-97.
ORDER
An evaluation in excess of 10 percent for ACL reconstruction,
right knee is denied.
M. Sabulsky
Member, Board of Veterans' Appeals